September 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISHAAN WHITEHEAD A/K/A RAHEEM HOMES, ISHAAN WHITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Grall and Alvarez.
Tried to a jury, defendant Ishaan Whitehead was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (a lesser-included of the second-degree aggravated assault charged in count one), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). The trial court dismissed count four of the indictment, fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, on defendant's Rule 3:18-1 motion made at the close of the State's case.
Defendant was sentenced on August 8, 2008, on the second-degree possession of a weapon for an unlawful purpose as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term of fifteen years imprisonment, seven of which were subject to parole ineligibility. The court imposed a five-year concurrent sentence on the third-degree unlawful possession of a weapon and a five-year concurrent sentence on the third-degree aggravated assault. Three years of the latter five-year sentence were made parole ineligible pursuant to N.J.S.A. 2C:43-6(c).*fn1 Defendant appeals and we affirm.
The State's principal witness was Deidre Stafford. She testified that at approximately 9:30 or 10:00 p.m. on July 16, 2007, she was walking through the courtyard area of the apartment complex where she lived with her nine-year-old daughter. Although it was dark, the area was illuminated. Stafford engaged in conversation with a friend, who asked to borrow a pen. As the two continued to walk, Stafford fell a few steps behind while searching through her pocketbook. She heard a popping sound and "felt a sting." Stafford then turned around and saw defendant running past her firing a handgun. She ran into the doorway of a nearby apartment building and saw defendant return and stand near a wall.
Stafford had been acquainted with defendant and his family all of her life, as her mother and his grandmother were friends, and she grew up with his mother. She has known defendant since birth. Stafford was taken to the hospital emergency room, where the bullet, which fortunately had not penetrated into her torso, was removed. As she described it, the bullet was "stuck" in her side, "twined up" in her shirt, and "was sticking out." Stafford was discharged from the hospital that same evening after having been administered morphine for pain. She was taken to the police station to be interviewed about the incident.
During the trial, Stafford said she identified defendant as the shooter at that initial interview. A report produced by the State for the first time on the third day of trial indicated to the contrary. It stated that while at the station Stafford had been asked if she could identify the shooter, and that she had responded that she could not. She was apparently asked again, at which point she said "maybe," but was uncertain and was very nervous. Because of her morphine-induced groggy and confused state, the investigating officers ended the interview, telling Stafford they would continue the following day, July 18. Stafford testified that while at the station she was unable to answer questions, but that as she was leaving she remembered who shot her. She said she "turned around and  said, I know who shot me, it was Ishaan Whitehead, and they let me go home."
A written statement was taken from Stafford the following day at her apartment; investigators showed her a photo array from which she selected defendant's photograph. She also identified defendant in court. Although at trial Stafford said she had last seen defendant two weeks prior to the shooting, in her written statement she said she had seen defendant three or four times the week prior. At trial, as well as on the night of the shooting, defendant wore his hair in dreadlocks.
On appeal, defendant's claims of error center on the judge's interactions with defense counsel:
The trial judge's criticisms of and antagonism towards defense counsel during trial improperly communicated a prejudice against the defense, thereby denying Mr. Whitehead a fair trial. (Not raised at trial).
A. Judge's comments on defense counsel's opening.
B. Criticisms and interruptions of counsel's cross-examination.
Because none of these claims of error were raised at trial, they are subject to the plain error standard of review.
R. 2:10-2. Therefore, we must determine if the claimed error is "clearly capable of producing an unjust result." Ibid. It must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Claims of prejudicial error in the conduct of a trial judge are viewed in the context of the entire proceeding. State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). Certainly, judges possess "broad discretion" in matters relating to the manner in which a criminal case is tried but are expected to avoid the appearance of partiality in its exercise. State v. Ray, 43 N.J. 19, 25 (1964) (citing Band's Refuse Removal, Inc. v. Fair Lawn Borough, 62 N.J. Super. 522, 548 (App. Div.), certif. denied, 33 N.J. 387 (1960)). "[I]t is entirely proper for judges to ask witnesses questions to clarify their testimony," and they "may also intervene to expedite a trial and prevent delay or waste of time." State v. Taffaro, 195 N.J. 442, 450-51 (2008); see N.J.R.E. 614. The authority is constrained by the obligation to avoid any suggestion that the judge is "taking one party's side." Taffaro, supra, 195 N.J. 442, 45051 (2008); see N.J.R.E. 614. For that reason, when judges intervene in questioning a witness, they should explain that their purpose is to aid the jury's understanding, and not to extend their support to one side or the other. State v. Guido, 40 N.J. 191, 207 (1963).
In this case, defendant claims that specific comments and interventions made by the judge deprived him of his right to a fair trial and that the cumulative effect of the conduct was similarly prejudicial.
Defendant first points to the court issuing sua sponte a curative instruction after opening statements. In the instruction, the judge reiterated his prior charge that statements made by attorneys are not evidence. He focused on defense counsel's statements, which were more specific than that of the prosecutor, but mentioned the State's opening as well. Furthermore, he said:
Lastly, you heard comments about liberty being at stake and this being a very important case. Every case is important. You are the sole judges of the facts. You must not be affected or diverted by any appeals to bias, passion, prejudice, or influenced in any way by sympathy or pity. You must decide this case from the facts and the inferences which are supported by the evidence and the legal principles which I will give you.
In every respect, your judgment in this case should be considered, deliberative, objective, and it should derive its force and validity from the facts which you hear in this case and the inferences which are reasonably and logically supported by the facts.
Remember that the law makes no distinction as between persons. The law applies to everyone alike the same way.
Although the instruction may have been unnecessary, we do not agree with defendant that it unfairly prejudiced him. Despite referring to a greater number of comments made by defense counsel than the prosecutor, the judge's purpose was unmistakable. The instruction merely reminded the jury of their duty to impartially assess the evidence. It was not prejudicial.
Defendant also contends that the trial judge unnecessarily interrupted his attorney's cross-examination, and in some instances, rephrased questions he posed to the witnesses. The statements defendant deems improper are more reasonably characterized as permissible clarification of question and answers. Taffaro, supra, 195 N.J. at 451.
The first claim is based on the following exchange during defense counsel's questioning of Stafford:
Q: So the second sentence, the detective was going to ask you questions pertaining to an incident that occurred on 10:27 on July 16th, and you said yes?
A: Yes, okay.
Q: Around that time, it's safe to assume --
THE COURT: Did you ask a question, and are you requiring an answer?
[Defense counsel]: No. I said you said yes.
THE COURT: Sir, are you looking for an answer?
All right. Ma'am, when you answer the question, you have to verbalize.
Did you answer that?
THE WITNESS: No. Could he repeat what you just said to me, please.
THE COURT: Could you repeat the question, please.
[Defense counsel]: Sure.
During this brief exchange, the court merely clarified that counsel had posed a question. The judge contemporaneously instructed the State's witness to verbalize her responses. The purpose appears obvious, that being to expedite the examination and ensure the witness's responses would be reflected in the record. The judge interrupted merely to clarify the witness's testimony.
Defendant also points to a subsequent exchange:
Q: So you're very familiar with the family?
Q: So what's perplexing, Miss Stafford, is --
THE COURT: Objection. There's no question. Question.
[Defense counsel]: I'm sorry?
Q: The question is: You are very familiar with Mr. Whitehead, Mr. Whitehead knows you, you are very familiar with the family?
Q: And on July 17th, police officers come and they take a statement from you.
THE COURT: Just for the record, she's correct that you once said it was July 16th.
[Defense counsel]: Judge 17th, the statement.
THE COURT: I stand corrected. She indicated they came the next day. Continue. [Emphasis added.]
While it is not clear why the judge commenced this interruption with the word "objection," the court interjected in order to remind defense counsel to formulate a question rather than make a statement. The court's correction of the date was perhaps as defendant notes "gratuitous," however, it was an innocuous effort to clarify what the judge perceived as an inadvertent misstatement and not capable of conveying the impression that the judge was partial or disapproved of the defense or the attorney presenting it.
During the trial, the court on one occasion instructed defense counsel that when an objection was made, he could not continue to address the witness. On appeal defendant objects that when the court issued this directive, the witness had already answered the question so that the comment was unnecessary. It is within the judge's discretion to determine whether it is necessary or appropriate to give temperate direction to an attorney in order to avoid repetition of an error.
Twice, defense counsel requested permission to approach the bench; both requests were denied and the objections overruled. This too is claimed to establish prejudice. No basis for the objections was ever placed on the record, and no claim is now raised that the evidence presented to the jury was inherently prejudicial. Decisions to address evidential questions at sidebar are, like all evidential questions, discretionary with the court. State v. Smith, 55 N.J. 476, 483, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed. 2d 256 (1970). A blanket ban is forbidden. Priolo v. Compacker, 321 N.J. Super. 21, 30 (App. Div. 1999). Here, however, no such blanket ban was imposed. At least one request by defendant's attorney for a sidebar was granted. No prejudice resulted from the refusals.
When the defense attorney attempted to cross-examine the investigating officer, Kevin Lassiter, about his grand jury testimony, the court interposed the following questions:
THE COURT: Before doing that, sir, do you know what you've been handed?
What is that document before you?
THE WITNESS: This is the transcripts [sic] of the grand jury.
THE COURT: Does it have a case name?
THE WITNESS: It has the case name.
THE COURT: What is it?
THE WITNESS: State versus Ishaan Whitehead.
THE COURT: Okay. Why don't you turn to the second page.
Does your name appear on the second page?
THE WITNESS: That's correct.
THE COURT: Does it indicate the pages on which your testimony is covered?
THE WITNESS: Three through twelve.
THE COURT: Your testimony is pages three to twelve, sir?
THE WITNESS: As far as I understand. THE COURT: If you understand.
Okay, [defense counsel], continue.
No actual prejudice is asserted from the court's modeling of another manner of confronting the witness with his prior testimony. Defendant merely asserts that the jury would have concluded from these instances that the court did not respect counsel. On one prior occasion, defense counsel failed to elicit a foundation for a document which he was attempting to introduce. Subsequently, defense counsel failed to lay a proper foundation for the introduction of a preliminary investigation report.
The judge's action, considered in the context of the trial, was not likely to lead the jurors to infer that the judge lacked respect for defense counsel. The court also interrupted the prosecutor when he attempted to use a document during his examination of a witness. Although these interjections are not the only means of addressing counsel's trial techniques, the court's interventions did not prevent counsel from presenting evidence to the jury or demean the defense.
Additionally, we note that the jury was instructed before and after the trial by the court that it had no interest in the outcome of the trial, and that they would "not be getting any signs or signals from me as to what you should do as the sole judges of the facts." He reminded the jury in his closing charge:
[M]y rulings and my conduct during the course of the trial was not and is not designed to influence your decision on this case.... I'm not trying to give you any decision or indication as to how your case should be decided.
Any comments that I made with respect to rulings as it relates to the attorneys or anything in this case, I attempted to be objective. It is not an indication of trying to give you, as I've indicated at the beginning, any signs.
Hence, we see no clear error or any perceptible risk of prejudice resulting from the court's comments and interruptions overall. They were minimal and made within the context of the court's repeated instructions to the jury that they alone were the fact-finders.
Defendant also contends that an exchange between defense counsel and the court relating to a report Lassiter had failed to provide to the prosecutor before trial, "which should be occurring" outside the presence of the jury, established the court's "overall impatience with and antagonism toward the newly admitted defense attorney...." Defense counsel attempted to characterize the belated receipt of Lassiter's report as the submission of late discovery and requested that the State be sanctioned accordingly. The court did not agree. We fail to see where this dispute rose above the routine evidentiary problems that commonly develop during trial. The court's refusal to sanction the State was a reasonable exercise of discretion. No prejudice to defendant was established by the debate.
In sum, we reject defendant's contention that the court's at times condescending treatment of his attorney prejudiced the outcome of the trial.
The judge did not act in a partisan manner, as at times his conduct towards the prosecutor was similarly didactic. He did not challenge the credibility of any defense witnesses, as there were none, nor did he impugn defendant's character. Guido, supra, 40 N.J. at 207-08; Ray, supra, 43 N.J. at 27-29. The judge intervened when he felt that trial rules were being overlooked or that question or answers required clarification for the jury's benefit. He repeatedly instructed the jury that they were the sole factfinders of the case.